-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VteG0SkfaZ4rnp3Bxv8PLLHce17eHzDeNIrBXjx2FBrsx126Auua5bQFiIWHiIv/ KK+YjEsruFg3GLyRQyqUBA== 0000950124-04-000139.txt : 20040121 0000950124-04-000139.hdr.sgml : 20040121 20040121172323 ACCESSION NUMBER: 0000950124-04-000139 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040121 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ESPERION THERAPEUTICS INC/MI CENTRAL INDEX KEY: 0001066745 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 383419139 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60849 FILM NUMBER: 04535874 BUSINESS ADDRESS: STREET 1: 3621 S STATE STREET 695KMS PLACE STREET 2: 734-332-0506 CITY: ANN ARBOR STATE: MI ZIP: 48108 MAIL ADDRESS: STREET 1: 3621 STATE STREET STREET 2: 695 KMS PLACE CITY: ANN ARBOR STATE: MI ZIP: 48108 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ESPERION THERAPEUTICS INC/MI CENTRAL INDEX KEY: 0001066745 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 383419139 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 3621 S STATE STREET 695KMS PLACE STREET 2: 734-332-0506 CITY: ANN ARBOR STATE: MI ZIP: 48108 MAIL ADDRESS: STREET 1: 3621 STATE STREET STREET 2: 695 KMS PLACE CITY: ANN ARBOR STATE: MI ZIP: 48108 SC 14D9/A 1 k82223sc14d9za.txt AMENDMENT NO. 2 TO FORM SC 14D9 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- SCHEDULE 14D-9 (RULE 14D-101) SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 AMENDMENT NO. 2 ----------------- ESPERION THERAPEUTICS, INC. (Name of Subject Company) ESPERION THERAPEUTICS, INC. (Name of Person(s) Filing Statement) ----------------- COMMON STOCK, PAR VALUE $0.001 PER SHARE (Title of Class of Securities) ----------------- 29664R 10 6 (CUSIP Number of Class of Securities) ----------------- ROGER S. NEWTON, PH.D. PRESIDENT AND CHIEF EXECUTIVE OFFICER ESPERION THERAPEUTICS, INC. 3621 SOUTH STATE STREET 695 KMS PLACE ANN ARBOR, MI 48108 (734) 332-0506 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of the Person(s) Filing Statement) With a copy to: LINDA L. GRIGGS, ESQ. MORGAN, LEWIS & BOCKIUS LLP 1111 PENNSYLVANIA AVENUE, NW WASHINGTON, DC 20004 TELEPHONE: (202) 739-5245 FACSIMILE: (202) 739-3001 ___ Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. * Explanatory Note. Esperion Therapeutics, Inc. (the "Company") hereby amends its Solicitation/Recommendation Statement on Schedule 14D-9, filed with the SEC on January 7, 2004, as previously amended by Amendment No. 1 thereto filed on January 8, 2004. The Company is amending its Schedule 14D-9 to include two additional exhibits, and to make corrections to the Summary Compensation Table that was included in the Rule 14f-1 Information Statement attached as Annex A to the Schedule 14D-9. ITEM 3. PAST CONTRACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. (b) AGREEMENTS WITH PARENT. The Merger Agreement. On January 16, 2004, the Company, Purchaser and Parent amended Section 7.03(d) of the Merger Agreement. A copy of the amendment is attached hereto as Exhibit (e)(12). ITEM 4. THE SOLICITATION OR RECOMMENDATION. On January 13, 2004, the United States Federal District Court for the District of Connecticut issued an order, a copy of which is attached hereto as Exhibit (e)(13), approving a settlement between the Company and Durus Life Sciences Master Fund and the Sacane Group whereby the Company is to be paid $32.2 million dollars. ITEM 9. EXHIBITS EXHIBIT NO. DESCRIPTION (e)(12) Amendment to Agreement and Plan of Merger, dated as of January 16, 2004, by and among the Company, Purchaser and Parent. (e)(13) Stipulation of Dismissal with Prejudice of the lawsuit brought by the Company against Durus Life Sciences Master Fund, Ltd., Durus Capital Management, LLC, Durus Capital Management (N.A.), LLC, and Scott Sacane. ANNEX A EXECUTIVE COMPENSATION SUMMARY COMPENSATION. The following table presents information concerning the compensation paid to or earned during the last three fiscal years by the Company's Chief Executive Officer and four most highly compensated executive officers. We refer to these persons as the Named Executive Officers. SUMMARY COMPENSATION TABLE
SECURITIES ALL OTHER NAME AND OTHER ANNUAL UNDERLYING COMPENSATION PRINCIPAL POSITION YEAR SALARY($) BONUS ($)(1) COMPENSATION OPTIONS (#) ($)(3) - ------------------ ---- --------- ------------ ------------ ---------- ---------- Roger S. Newton, Ph.D. 2003 $325,000 $200,000 -- 125,000 $ 6,000 President, 2002 312,500 70,000 -- 400,000 5,000 Chief 2001 250,000 100,000 -- 30,000 -- Executive Officer Timothy M. Mayleben 2003 255,000 200,000 -- 100,000 6,000 Chief Operating 2002 236,000 36,000 -- 250,000 5,500 Officer and Chief 2001 195,000 48,750 -- 20,000 -- Financial Officer Brian R. Krause, Ph.D. 2003 179,000 71,600 -- 50,000 6,000 Senior Vice 2002 168,000 15,000 -- 60,000 5,673 President, 2001 110,833 21,000 -- 80,000 -- Preclinical Research and Discovery Jean-Louis H. Dasseux, Ph.D., 2003 183,700 91,850 -- 50,000 3,026 Vice President, 2002 174,900 18,000 35,212(2) 70,000 3,119 Chemistry and 2001 165,000 33,000 -- 10,000 -- Technologies William F. Brinkerhoff, 2003 166,500 83,250 -- 50,000 5,994 Vice President, 2002 100,615 10,000 -- 75,000 -- Business Development 2001 -- -- -- -- --
- ------------------- (1) Bonuses are reported in the year earned, even if actually paid in a subsequent year. (2) Includes $22,500 in tuition reimbursement and $12,712 in income and social security taxes paid by the Company in connection with the tuition. (3) These amounts represent the Company's matching contributions to the executive officers' 401(k) plan in the year earned, even if actually made in a subsequent year. SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. By: /s/ Roger S. Newton, Ph.D. ------------------------------------- Name: Roger S. Newton, Ph.D. Title: President and Chief Executive Officer Dated: January 21, 2004 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION (e)(12) Amendment to Agreement and Plan of Merger, dated as of January 16, 2004, by and among the Company, Purchaser and Parent. (e)(13) Stipulation of Dismissal with Prejudice of the lawsuit brought by the Company against Durus Life Sciences Master Fund, Ltd., Durus Capital Management, LLC, Durus Capital Management (N.A.), LLC, and Scott Sacane. EX-99.(E)(12) 3 k82223exv99wxeyx12y.txt AMENDMENT TO AGREEMENT AND PLAN OF MERGER EXHIBIT (e)(12) AMENDMENT TO AGREEMENT AND PLAN OF MERGER BY AND AMONG PFIZER, INC., ENZO ACQUISITION CORP. AND ESPERION THERAPEUTICS, INC. This Amendment, dated of as January 16, 2004 (this "Amendment"), amends the Agreement and Plan of Merger, dated as of December 19, 2003 (the "Agreement"), by and among Pfizer Inc., a Delaware corporation ("Parent"), Enzo Acquisition Corp., a Delaware corporation ("Merger Sub"), and Esperion Therapeutics, Inc., a Delaware corporation (the "Company"). Capitalized terms used herein but not defined shall have the meanings assigned to such terms in the Agreement. WHEREAS, each of the parties hereto has determined that it is desirable to amend the Agreement as set forth in this Amendment. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows: 1. The first sentence of Section 7.03(d) of the Agreement is hereby amended by changing "January 16, 2004" to "on or about January 20, 2004." 2. Parent and Merger Sub shall promptly amend the Offer Documents, and the Company shall promptly amend the Schedule 14D-9, in each case as filed with the SEC, as appropriate to reflect the terms of this Amendment. 3. Except as specifically amended by this Amendment, the Agreement shall remain in full force and effect. 4. This Amendment shall be governed by, and construed in accordance with, the Laws of the State of Delaware applicable to contracts executed in and to be preformed in that State. 5. This Amendment may be executed in two or more counterparts (delivery of which may occur via facsimile), each of which shall be binding as of the date first written above, and, when delivered, all of which shall constitute one and the same instrument. A facsimile signature or electronically scanned copy of a signature shall constitute and shall be deemed sufficient evidence of a party's execution of this Amendment, without necessity of further proof. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.] IN WITNESS WHEREOF, Parent, Merger Sub and the Company have duly executed this Amendment as of the day and year first written above. PFIZER INC. By: /s/ David Reid --------------------------- Name: David Reid Title: Assistant Secretary ENZO ACQUISITION CORP. By: /s/ David Reid --------------------------- Name: David Reid Title: Vice President and Secretary ESPERION THERAPEUTICS, INC. By: /s/ Roger S. Newton, Ph.D. --------------------------- Name: Roger S. Newton, Ph.D. Title: President and Chief Executive Officer EX-99.(E)(13) 4 k82223exv99wxeyx13y.txt STIPULATION OF DISMISSAL WITH PREJUDICE OF LAWSUIT EXHIBIT (e)(13) FILED UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT 2004 JAN 13 P 3:14 03CV1437STIDDISM US DISTRICT COURT BRIDGEPORT CT - ---------------------------------------- X ESPERION THERAPEUTICS, INC., : Case No.: 03:-CV-1437(SRU) : Plaintiff, : : -against- : : DURUS LIFE SCIENCES MASTER : FUND, LTD, DURUS CAPITAL : MANAGEMENT, LLC, DURUS CAPITAL : MANAGEMENT (N.A.), LLC AND SCOTT : SACANE, : : Defendants. : January 13, 2004 : - ---------------------------------------- X STIPULATION OF DISMISSAL WITH PREJUDICE IT IS HEREBY STIPULATED AND AGREED, pursuant to F.R.C.P. 41(a)(l), by and among counsel for the parties hereto, that this action, and all claims asserted in this action, shall be and hereby are dismissed with prejudice and without costs to any party. Dated: Stamford, Connecticut January 13, 2004 PLAINTIFF, DEFENDANTS DURUS CAPITAL ESPERION THERAPEUTICS, INC. MANAGEMENT, LLC, DURUS CAPITAL MANAGEMENT (N.A.), LLC and SCOTT SACANE By: /s/ John F.X. Peloso, Jr. By: /s/ Timothy G. Ronan --------------------------------- -------------------------------- John F.X. Peloso, Jr. (ct 02447) Timothy G. Ronan (ct 06310) ROBINSON & COLE LLP PULLMAN & COMLEY, LLC 695 East Main Street 300 Atlantic Street P.O. Box 10305 Stamford, CT 06901-3522 Stamford, CT 06904-2305 Telephone: (203) 324-5000 Telephone: (203) 462-7500 Facsimile: (203) 363-8659 Facsimile: (203) 462-7599 Email: tronan@pullcom.com Email: jpeloso@rc.com And And Kevin T. Rover (ct 25397) Matthew S. Dontzin (ct 20032) Adrienne M. Ward (ct 25396) David A. Fleissig (ct 20034) MORGAN LEWIS & BOCKIUS THE DONTZIN LAW FIRM LLP 101 Park Avenue 6 East 81st Street New York, NY 10178 New York, NY 10028 DEFENDANT DURUS LIFE SCIENCES MASTER FUND LTD By: /s/ Patrick J. McHugh ---------------------------- Patrick J. McHugh (ct 14072) FINN DIXON & HERLING LLP One Landmark Square, Suite 1400 Stamford, CT 06901-2689 Telephone: (203) 325-5000 Facsimile: (203) 348-5777 Email: pmchugh@fdh.com And Harry S. Davis (ct 09746) Matthew L. Craner (ct 25278) Nicole Vander Voort (ct 25280) SCHULTE ROTH & ZABEL LLP 919 Third Avenue New York, NY 10022 SO ORDERED /s/ Stefan R. Underhill 1/13/04 ------------------------ U.S.D.J. 03CV1437ORDER FILED 2004 JAN 13 P 3:14 US DISTRICT COURT BRIDGEPORT CT -----END PRIVACY-ENHANCED MESSAGE-----